Expiration of warning

Labour & European Law ReviewWeekly Issue 50901 March 2017

When considering unfair dismissal claims, tribunals have to first identity the reason for dismissal and then consider whether it is fair. In Stratford v Auto Trail VR Ltd, the Employment Appeal Tribunal (EAT) held that an employer can rely on an expired disciplinary warning as part of the overall circumstances when deciding whether to dismiss an employee.

Basic facts

Mr Stratford had a poor disciplinary record with the company, having received 17 warnings since he started work for them in November 2001. The last two related to a nine-month disciplinary warning for failing to make contact while off sick in December 2012; and a three-month warning for using company machinery and time for “preparing materials for personal purposes” in January 2014.

Both had expired by October 2014, however, when Mr Stratford was seen with his mobile phone in his hand when he was on the shop floor, something that the employee handbook described as “strictly prohibited”. He was given a final written warning for misconduct (as opposed to gross misconduct) but, because of his previous record and because his manager did not believe his behaviour would improve, he was dismissed.

Tribunal decision

Having found that the reason for dismissal was conduct, the tribunal judge then considered the issue of fairness under section 98(4) of the Employment Rights Act (ERA) 1996.

Noting the decisions in Diosynth Ltd v Thomson and Airbus UK Ltd v Webb, the tribunal judge held that section 98(4) allowed him to take Mr Stratford’s disciplinary record into account, balanced against the usual practice of wiping the slate clean once a warning has expired. In this case, he “unhesitatingly” decided that the decision to dismiss was fair, taking into account his disciplinary record and his attitude to discipline in general.

Mr Stratford appealed on the basis that this decision was contrary to the decisions in Dionsynth and Webb, arguing that when an employee is guilty of misconduct as opposed to gross misconduct (which does not necessarily justify dismissal anyway), it is not reasonable for an employer to rely on expired warnings for earlier misconduct in order to dismiss.

EAT decision

The EAT first considered the decision of the Scottish Court of Appeal in Diosynth which held that it was unfair for an employer to put a time limit on a warning and then take it into account when deciding whether to dismiss an employee for something that happened after it expired.

However, it then considered the later decision in Webb where the English Court of Appeal found that a dismissal for misconduct could be fair under section 98 ERA where the employer had taken previous misconduct (for which the employee could have been dismissed) into account in relation to a later act of misconduct.

Dismissing the appeal, the EAT held that the legal position to be applied was the one set out in Webb. It distinguished Diosynth on the basis that the facts were very different. For instance, the employee in that case had just one previous warning which had expired and which was described as “tipping the balance” rather than being looked at as part of a whole record leading to dismissal.

The tribunal was therefore entitled to take account of Mr Stratford’s previous record, along with the most recent offence and the manager’s prediction that things would not change.

Comment

This case shows that whether an employer can take an expired warning into account will depend on the circumstances of the case. However, employers beware. The case does not mean that they can take an expired warning into account in order to make an employee’s conduct into a dismissible offence.